Defamation Attorneys in Palo Alto and Sacramento
Defamation is one of the most difficult areas of the law to navigate. From the client’s perspective, it causes anxiety, shame, and humiliation. Oftentimes it causes the defamed party to be ostracized by friends, co-workers, and even family.
From a legal perspective, defamation is fraught with legal loopholes, mostly due to the legal concerns for freedom of speech, as set forth in the First Amendment of our United States Constitution, and reiterated in our California State Constitution. Such loopholes include privileges, which act as immunities for defamatory speech. Those privileges include, but are not limited to, the absolute legislative proceeding privilege, the absolute judicial proceeding privilege, the conditional interested parties’ privilege, and the fair reporting and fair comment privileges. See California Civil Code § 47.
The heart of defamation is a false statement that is materially injurious to the reputation of the subject of the speech. The speech itself may be written, in which case the defamation is called libel, or it can be oral, in which case it is called slander.
The new epidemic of defamation is online defamation. Online defamation is one of the most nefarious types of defamation because it can come up a subject’s name for years without end after it has been posted by an adversary. The matter is complicated by the fact that hosts of search engines and platforms for reviews are generally immune from lawsuits for defamation under the Communications Decency Act, a federal law that prohibits lawsuits against hosts who do not act as editors of content.
A further complication is that online defamation is often done under a pseudonym or anonymously. When the identity of the author of an offensive post is unknown, the procedure is to file a lawsuit against John and/or Jane Doe, and to ask the Court for permission for early discovery in the form of a subpoena to the host. The subpoena requests information about the internet protocol (IP) address and the underlying email account(s) from which the offensive material emanated. There is no guarantee that the information provided pursuant to a subpoena will lead to the actual discovery of the author of the defamatory material.
In the July 2, 2018 decision of the California Supreme Court, Hassell v. Bird, Yelp was an objector and appellant. The California Supreme Court ruled that Yelp was protected from being ordered to take down an offensive review because Yelp did not participate in the judicial proceedings that led to the default judgment. There was not a majority, but rather a plurality of the opinion, that Yelp was also protected under the Communications Decency Act of 1996 from being hailed into a lawsuit in order to take down a post.
Contact Our Defamation Law Firm
At the Broderick Saleen Law Firm we are equipped to deal with the intricacies of claims of defamation in the form of libel and slander. Call us at 650-857-9000 or 916-550-3092 for a consultation and see if you have a case.